Sukumaran v. Resmi & Ramani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 /30TH KARTHIKA, 1940** ## **Mat.Appeal.No. 297 of 2009** **AGAINST THE ORDER IN OP 603/2007 of FAMILY COURT,KOZHIKODE DATED 24-12-2008** ## **APPELLANT/PETITIONER:** **SUKUMARAN, AGED 39 YEARS, S/O.KUTTIKRISHNAN NAMBIAR,, PUTHIYOTTIL VEETTIL, KARTHIKAPPALLI AMSOM,, KURINHALIYODE DESOM, KURINHALIYODE P.O., VADAKARA TALUK.** **BY ADV. SMT.O.A.NURIYA** ## **RESPONDENTS/RESPONDENTS:** **1 RESMI, D/O LATE JANARDHANAN NAMBIAR, VADAKKAL VEETTIL, KAYAKKODI AMSOM,AAKKAL DESOM,, P.O.AAKKAL, VIA.KAVILAMPARA.VADAKARA TALUK,, REPRESENTED BY MOTHER 2ND RESPONDENT AS GUARDIAN.** **2 RAMANI W/O.LATE JANARDHANAN NAMBIAR VADAKKEL VEETTIL, KAYAKKODI AMSOM, AAKKAL DESOM, P.O. AAKKAL, VIA, KAVILAMPPARA, VADAKKARA TALUK.** **BY ADVS.** **SMT.PREEJA P.VIJAYAN SRI.V.V.NANDAGOPAL NAMBIAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2018, ALONG WITH Mat.Appeal.656/2009, THE COURT ON 21.11.2018 DELIVERED THE FOLLOWING:** Mat.Appeal Nos.297 & 656/09 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018/30TH KARTHIKA, 1940** **Mat.Appeal.No. 656 of 2009** **AGAINST THE ORDER IN OP 752/2008 of FAMILY COURT,KOZHIKODE DT 18/6/2009** ## **APPELLANT/RESPONDENT:** **SUKUMARAN, AGED 39 YEARS, S/O.P.KUTTIKRISHNAN NAMBIAR, PUTHIYOTTIL VEETTIL, KARTHIKAPALLY AMSOM, KURINHALIYODE DESOM,, KURINHALIYODE P.O., VADAKARA TALUK.** **BY ADV. SMT.O.A.NURIYA** ## **RESPONDENT/PETITIONER:** **RESMI, D/O LATE JANARDHANAN NAMBIAR, VADAKKAL VEETTIL, KAYAKKODI AMSOM, AAKKAL DESOM, P.O.AAKAL, VIA.KAVILAMPARA, VADAKARA TALUK.** **BY ADVS. SMT.PREEJA. P.VIJAYAN SRI.V.V.NANDAGOPAL NAMBIAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2018, ALONG WITH Mat.Appeal.297/2009, THE COURT ON 21.11.2018 DELIVERED THE FOLLOWING:** -:3:- Mat.Appeal Nos.297 & 656/09 ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals are filed by the petitioner in OP No.603/2007, who is the respondent in OP No.752/2008. 2. OP No.603/2007 was filed by the petitioner/appellant seeking divorce u/s 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955. The short facts that has arisen in the matter are as under and the parties are described as shown in the OP. 3. The petitioner married the 1[st] respondent on 15/1/2006 as per Hindu religious rites and ceremonies. He alleges that even from the first day of marriage itself, she was behaving in an improper manner. She stated that she has her menstrual period and cannot sleep with him for 10 days and therefore they slept separately. He noticed that she was taking three or four hours for her bath and when he asked about the same, she stated that she would like to keep her clean very keenly. He also noticed that she was washing her hands and legs several times stating that it was not clean. This process continued during midnight as well. They did not have an attached bathroom. During midnight, she used to go out without any fear to wash her hands and feet. Her entire Mat.Appeal Nos.297 & 656/09 -:4:- approach caused fear in the mind of the petitioner. Later it was understood that she was not in a position to do any household works independently. He noticed that she was washing clothes for several hours and felt that it was never clean. After 10 days of marriage, though the petitioner approached her for cohabitation, she stated that, she would like to treat him as a brother and he was not permitted to have any sexual contact with her. Initially he did not inform the matter to any of his family members as he thought that she may change her attitude. During the first week of February 2006, she again had her menstrual period and she again informed that she should sleep separately from him for 10 days. Petitioner therefore informed the matter to the 1[st] respondent's mother, who is arrayed as the 2[nd] respondent and guardian of the 1[st] respondent. 2[nd] respondent informed him that her attitude may change after some period. Despite his earnest attempts and even after a few months of marriage, she did not permit him to have any sexual contact with her and the marriage was not consummated. Petitioner submits that on account of her attitude, he was unable to concentrate on his work and he was suffering severe mental agony. The 2[nd] respondent was informed Mat.Appeal Nos.297 & 656/09 -:5:- about all these facts who came and took the 1[st] respondent to the parental house. She was also taken for treatment and the Doctor opined that her illness could be cured if medicines are taken for a continuous period. The first respondent left to her house on 17/3/2006 and during her stay at her parental home, she did not make any enquiry regarding the affairs of the petitioner or his parents. According to him, she is not a person capable of continuing a marital relationship and she was living separately since 17/3/2006. Though the petitioner was willing to take her to a Doctor for treatment, she and her mother were not willing. Certain mediation took place between members of the family and both in fact agreed that a joint petition could be filed to dissolve the marriage. But later, she changed her attitude and stated that she was not willing to dissolve the marriage by mutual consent. It is in the said circumstances, the petitioner had approached the Court seeking divorce on the ground of mental illness of the respondent and cruelty. 4. Respondent in her counter statement denied the allegations. According to her, intention of the petitioner is to avoid her. She further stated that petitioner and his parents had Mat.Appeal Nos.297 & 656/09 -:6:- gone to Guruvayoor temple and at that time she could not accompany them. Therefore she had gone to her parental house. Petitioner thereafter did not come back to take her back. She however submits that there was mediation talk in August, 2006 but she denied having entered into any compromise to dissolve the marriage by mutual consent. 5. Before the Family Court, petitioner and two witnesses were examined as PW1 to PW3. Respondent herself was examined as RW1 and a witness was examined as RW2. The Family Court found that there is no evidence to prove that respondent was suffering from any mental illness and the petitioner was unable to prove any of the allegations and accordingly, the OP was dismissed. 6. Mat.Appeal No.656/2009 has been filed by the appellant/husband challenging order dated 18/6/2009 in OP No.752/2008. The OP has been filed by the wife seeking restitution of conjugal rights. Both parties were examined as PW1 and RW1 and the Family Court allowed the said petition. 7. Since both the matters arise out of the very same issue, these are heard and decided together. The decision in Mat.Appeal Nos.297 & 656/09 -:7:- Mat.Appeal No. 297/2009 will decide the controversy in both the appeals. 8. During the pendency of the appeals, there was an attempt of mediation and in an affidavit filed along with IA No.2490/13, appellant/petitioner has stated that the parties started living together from 23/10/2012. A judgment was delivered by this Court on 11/2/2013 observing that the parties were residing together, however indicating that if the parties wish to file a compromise petition, they can seek revival of the case. Subsequently, the review petitions were filed and the judgment dated 11/2/2013 had been re-called. Petitioner further submits that during the intervening period, they lived together for some days. The 2[nd] respondent also stayed in their house and she saw the problems and had understood the situation. The 2[nd] respondent also insisted that the first respondent should consult a Doctor. She was taken to the Government Medical College Hospital, Kozhikode as an in-patient on 20/3/2013 and was discharged on 8/4/2013. The petitioner states that during the course of treatment, the Head of Department and the Doctors were unanimous in their opinion that there is no likelihood of Mat.Appeal Nos.297 & 656/09 -:8:- improvement of her condition. He also stated that from 8/4/2013, he was living separately from the petitioner. Annexure A1 had been produced to prove the aforesaid facts. Petitioner had sought for receiving Annexure A1 for the purpose of considering the Review Petition. While considering the review petitions, as per order dated 5/11/2013, this Court observed that the matter requires consideration on merits and accordingly the earlier judgment was reviewed. 9. During the course of hearing, learned counsel for the appellant sought for receiving Annexure A1 on file. In fact, no counter affidavit has been filed to IA No.2162/2013 in RP 747/2013. Hence, Annexure A1 is marked as Ext.A1 in OP No.603/2007. It is a notebook which contains the details of the evaluation by the Doctors from 25/2/2013 till 12/7/2013. In Ext.A1, it is stated that patient has overvalued ideas regarding an incident which had happened about 10 years back and she continues to believe that her difficulties are solely due to the said event. She also believes that the impact of the event is wearing off gradually and she does not require any external intervention for resolving the same. It is also reported that she has a Mat.Appeal Nos.297 & 656/09 -:9:- complaint of cleaning herself several times and her bathing takes half an hour to 45 minutes. Ext.A1 would apparently show that she was having some mental problem long back and the same continued even after marriage. 10. Learned counsel for the appellant placed reliance on judgment of the Apex Court in _**Manisha Tyagi v. Deepak Kumar**_ (2010 (1) KLT SN 82) wherein the Apex Court observed that cessation of marital intercourse, studied neglect and indifference of one spouse to the other may lead to an inference of cruelty. Another judgment relied upon is that of a Division Bench of this Court in _**Manoj v. Vidhya**_ (2010 (2) KLT 305), wherein this Court held that though irretrievable break down of marriage is not a ground for divorce, it is relevant while considering a claim for divorce on the ground of cruelty. _**Gurbux Singh v. Harminder Kaur**_ (2010) 4 KLT SN 36) has also been relied upon to emphasise that the concept of mental cruelty cannot have a comprehensive definition. The Apex Court while considering the aforesaid judgment placed reliance on the judgment in _**Samar Ghosh v. Jaya Ghosh**_ [(2007) 4 SCC 511] wherein a three Judge Bench of the Apex Court had laid down Mat.Appeal Nos.297 & 656/09 -:10:- certain guidelines regarding mental cruelty. 11. In order to grant a divorce on the ground of unsoundness of mind, the petitioner will have to prove that the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent. Apparently, such a finding cannot be entered into by this Court. 12. The next question is whether the divorce can be granted on the ground of cruelty. On a perusal of the evidence of PW1, he had explained the manner in which she was behaving. According to him, her behaviour was improper in so far as she was bathing for several hours. She was washing her hands and legs several times and even during midnight. Her explanation was that she wants to keep her clean at all times. She even did not permit him to have any sexual contact with her. Apparently, the marriage between the parties have become irretrievably broken. An attempt was made for living together during the pendency of the appeals and the 2[nd] respondent having understood her problems, she was taken for psychiatric Mat.Appeal Nos.297 & 656/09 -:11:- evaluation and she was treated there. When the fact of treatment is not disputed, though we cannot arrive at a conclusion that she was having a mental disorder, the question that may arise would be whether the petitioner would suffer mental cruelty on account of such behaviour of the respondent. 13. PW2 and PW3 were mediators who had interfered in the matter since their matrimonial life fell into darkness immediately after the marriage. Both of them have stated that the decision was to dissolve the marriage by mutual consent after the one year period. But later, the respondent retracted from the same. Therefore, from the totality of the evidence, it is rather clear that petitioner could not have a proper marital life with the respondent right from the beginning of their marriage. They lived together only for a short time and during the pendency of these appeals, they stayed together for a few days and during that time she was undergoing treatment. 14. We are of the view that this is an instance where the petitioner was unable to have a proper married life on account of the behavioural imbalance or attitude of the respondent. When a marriage has been irretrievably broken and when it is found that Mat.Appeal Nos.297 & 656/09 -:12:- parties cannot have proper married life on account of the behavioural pattern of the respondent, it is an instance where it could be said that the petitioner was suffering from mental cruelty. In _**Samar Ghosh**_ (supra), the Apex Court held that the feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. We are of the view that this is a fit case in which the Family Court ought to have granted divorce on the ground of mental cruelty. 15. The Family Court had dismissed the petition proceeding on the basis that the allegation of mental illness has not been proved. That alone is not the issue involved in the case. Here, the petitioner complains of mental cruelty as well and divorce is sought on the said ground also. From the evidence on record, we are satisfied that the petitioner was unable to lead a proper marital life on account of the behavioural imbalance of the respondent which itself amounts to mental cruelty. That apart, as already stated, the marriage has been irretrievably broken and there is no chance for a reunion. 16. In the light of the aforesaid discussion, we have to set Mat.Appeal Nos.297 & 656/09 -:13:- aside the judgment and decree in OP No.752/2008 by which the Family Court had directed restitution of conjugal rights. Accordingly, Mat.Appeal Nos. 297/2009 and 656/2009 are allowed as under:- (i) The judgment and decree in OP No.603/2007 is set aside and a decree is passed declaring that the marriage between the petitioner and 1[st] respondent shall stand dissolved by a decree of divorce. - (ii) OP No.752/2008 shall stand dismissed. (iii) No costs. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/P.SOMARAJAN** Rp //True Copy// **JUDGE** PS to Judge